delivered the opinion of the court. This action was founded ón a covenant, by which the defendant warrants and defends the negroés mentioned in it, against all persons whatsoever, to be the property bf the plaintiff; and the breach assigned is, that they were the property of *418one Sommerville., who dispossessed the plaintiff of them, iff á former 'trial 'of this case in 1822; this court decided that the plaintiff might sustain his action, by proving á paramount title to the negróes in Sommerville, aiid that fact might be established", either by a recovery in a court of law, or by any other written or parol evidence. In the second trial the same testimony was offered to the jury. that had been submitted to them in the first, and also ad~ ' ditional parol evidence; intended to show a paramount title in Sommerville. No Objection whatever was made by the defendant tó the competency of this evidence, (except that given by R. Neule',) fabr was atiy prayer preferred to the court upon its sufficiency to sustain the action. Aftef the jury had retired, a difficulty occurred to' them; and by the consent of the parties they returned to deceive the instruction of the court. The question propounded by the ■jury was, who was bound to defend the replevin in Baltimore bounty court? .The court directed them, that neither the plaintiff nor defendant was bound by law to defend that suit; but that the plaintiff,was not confined to that testimony '¿lone; to sustain his action. If he bould prove a paramount title in Sommerville; by any other evidence; written of jwol; it was sufficient. Wé see no error iii this instruction; it is in substance, if not literally the law, as declared by this fcourt in the first trial in 1822.
It has been contended, that the evidence subihitted to the jury was not sufficient to prove a paramount title in Sommerville, and it was error in the court that they did not so instruct them. No objection was offered to its sufficiency at the trial. Had an application been made to the court upon that question, then, and then only, was it their duty to act upon it
The bill of exceptions appeared to be almost abandoned in the argument. The record certainly does not afford proof to prevent R. Neale from being a bompetént witness*
JUDGMENT ATiHtoiED.